Karnataka High Court
Sri Faraz Pasha vs State By on 26 June, 2023
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NC: 2023:KHC:21983-DB
CRL.A No. 90 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 90 OF 2023
Between:
Sri Faraz Pasha
S/o. Amjad Pasha
Aged 26 years,
No.35, Hosa Beedi,
Behind Manjunatha Talkies,
Kumbara Gundi,
Shivamogga,
Presently in Judicial Custody at
Central Prison, Mysuru.
...Appellant
(By Sri H.N.Divyateja, Advocate for
Sri Rahamathulla Kothwal, Advocate)
Digitally signed by
C K LATHA And:
Location: HIGH
COURT OF State by
KARNATAKA
National Investigation Agency,
Bengaluru,
Represented by its SPP
Bangaluru.
...Respondent
(By Sri Prasanna Kumar P., Spl.P.P.,)
This Criminal Appeal is filed u/s.21(4) of the National
Investigation Agency Act, 2008, praying to set aside the
judgment in Spl.C.C.No.2000/2022, dated 17.12.2022 passed
by the XLIX Additional City Civil and Sessions Judge Special
Court for trial of N.I.A. cases, Bengaluru and etc.,
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NC: 2023:KHC:21983-DB
CRL.A No. 90 of 2023
This Criminal Appeal, coming on for admission, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is filed by the accused No.8 who has been denied bail by the Special Court for trial of NIA cases by its order dated 17.12.2022 in Spl.C.C.No.2000/2022.
2. The appellant and other accused are imputed of killing Harsha @ Hindu Harsha in between 8.45 and 9.15 PM on 20.2.2022 at a place opposite to Kamat Petrol Bunk, Bharati Colony Cross in Shimoga City. FIR was registered at Doddapete Police Station and, while the case was being investigated by the State police, National Investigation Agency took over investigation and filed charge sheet for the offences punishable under sections 143, 201, 204, 212, 341 and 302 read with section 34 IPC, and sections 16, 18, 19 -3- NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 and 20 of Unlawful Activities (Prevention) Act, 1967.
3. The Special Court has found existence of prima facie case against the accused No.8, and to draw this conclusion, it has found from the charge sheet materials that he became a member of conspiracy by agreeing to keep watch on the movements of Harsha and provide information to other accused. The call records show that accused No.8 was constantly updating the movement of Harsha to co-accused which enabled the latter to attack and kill him. The statements of CW-55, CW-65, CW-66 and CW-70 indicate the presence of accused No.8 at the scene of occurrence; the CCTV footage collected at the petrol bunk show the movement of accused No.8 in a swift car with registration number CG-13/C-4496; and his mobile phone contains images of weapons used for commission of offence and photograph of deceased -4- NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 Harsha with injuries on his body. Therefore, the Special Court has held that these facts prima facie establish the involvement of accused No.8 in the crime being a member of larger conspiracy.
4. Sri Divyateja H N, learned counsel for the appellant-accused No.8 assails the findings of the Special Court urging the points that there are no materials indicative of the fact that accused No.8 was a member of conspiracy, that as the charge sheet indicates, accused No.1 to 7 could be called conspirators; that accused No.8 was enticed by accused No.6 to recce Harsha, and if the former agreed for the same without having knowledge of consequences and provided information about movements of Harsha to other accused, he did not become member of conspiracy. It was his another point of argument that accused No.8 cannot be said to have participated or involved in terrorist activity as he did not have intention to commit any -5- NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 of the acts mentioned in section 15 of the Unlawful Activities (Prevention) Act (for short hereinafter referred to as 'the Act'). He has read the statements of the witnesses as also the confession statements of all the accused to vehemently argue that accused No.8 had no intention nor agreed for being a part of conspiracy.
4.1. Sri Divyateja argued that accused 9 and 10 have been released on bail, the appellant is therefore entitled to claim bail on the ground of parity. He placed reliance on too many case laws in support of his argument, but in our opinion except one judgment of the Supreme Court in the case of Thwaha Fasal vs Union of India [Criminal Appeal 1302/2021], we do not think it necessary to refer to the rest as they deal with the basic principles applicable to bail jurisprudence.
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023
5. Sri P.Prasanna Kumar, learned standing counsel for National Investigation Agency, submitted that section 43D (5) of the Act requires that the prosecution should satisfy the court that accusations are prima facie true, and if it is demonstrated the court cannot grant bail. The other factors such as the young age of the accused, that he is the sole bread earner for the family, poverty, responsibility to look after aged parents, standing in society, absence of criminal antecedents, etc., are not to be considered for the purpose of granting bail.
5.1. Sri P.Prasanna Kumar further argued that section 15 of the Act clearly states that even doing an act by any other means of whatever nature to cause or likely to cause death of any person comes within the ambit of the term 'terrorist act' and in this case, the charge sheet clearly discloses the fact that accused 1 to 8 were all the members of -7- NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 conspiracy to cause the death of Harsha who was a pro Hindu activist. He argued that there was no personal enmity between the deceased and the accused; the latter decided to kill Harsha to strike terror among Hindus and send a message that the Muslims do not tolerate anything that infringes their religion. Killing of Harsha was nothing but a terrorist act. He referred to section 16 (1) (a) and section 18 of the Act to argue that the punishments prescribed thereunder are severe; and death penalty can also be imposed for the offence under section 16(1)(a).
6. Analysis of section 43D (5) makes it very clear that the restriction found therein is applicable for the offences punishable under Chapters IV and VI of the Act. The proviso to the section states that bail should not be granted if the court is able to form an opinion based on the case diary or the report under section 173 Cr.P.C. -8-
NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 that there are reasonable grounds for believing that accusation against a person is prima facie true. The expression used is 'prima facie true' and not 'prima facie case'. Obviously it is the duty of the public prosecutor to convince the court that the case diary or the report under section 173 of Cr.P.C. indicates that the accusations are prima facie true. As to the meaning of the term 'prima facie true', a judgment of the Supreme Court in the case of NIA vs Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] may be referred to. In para 23 it is held, "23. By virtue of the proviso to subsection (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have -9- NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie"
true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. ..........."
7. The above judgment makes it clear that whenever court has to arrive at a satisfaction that the accusations against an accused appear to be prima facie true, the degree of satisfaction is lighter than the degree of satisfaction to be recorded for considering an application for
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 discharge of an accused or framing charges. It can also be said that if the materials placed before the court are sufficient enough to form an opinion that they cannot be out rightly rejected as complicity of the accused in the commission of crime apparently appears, the court can record a satisfaction that the accusations are prima facie true.
8. In the case on hand, the accusation leveled against the appellant is that he acted as an information provider to the accused No.6 by keeping watch on the movements of Harsha. The existence of materials to this extent against the appellant is not disputed by the learned counsel for the appellant, but his argument was the charge sheet materials do not disclose existence of intention in him to commit a terrorist act within the meaning of section 15 of the Act and that even there are no materials to hold him a member of
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 conspiracy. It is difficult to accept this argument for the following reasons:
Section 18 of the Act provides for punishment for the offence of conspiracy and the said section reads as below:
"18. Punishment for conspiracy, etc.-
Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
9. It can be noticed here that whoever knowingly facilitates the commission of a terrorist act can be punished. Section 15 deals with the meaning of 'terrorist act'. The word 'whoever' found in the beginning of section 15 is interpreted
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 by a coordinate bench of this court in the case of Zabiulla @ Zabibulla vs State of Karnataka [Criminal Appeal No. 1527/2022] in the following way :
"19. In the above Section the term "Whoever" refers to any person committing any act mentioned therein with an intention to threaten or likely to threaten the unity, integrity, security and sovereignty of India or doing such act not only to strike the terror but which is likely to strike the terror amounts to terrorist act. Such person need not be a member of any terrorist organization or a terrorist gang."
10. In this case whether or not the accused are the members of terrorist gang or terrorist organization is not so material at this stage, but the evidence collected by the investigating officer shows that accused No.1 to 6 constituted informal body of individuals and chose Harsha to be killed in order to strike terror among Hindus. It is true that the appellant who is accused No.8 comes into picture at a later stage. If the materials do not
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 indicate that appellant was appointed to recce the deceased without disclosing to him the purpose of conspiracy among accused 1 to 7, he cannot be called a member of conspiracy nor a member of body of individuals who wanted to eliminate Harsha. But the materials indicate that accused No.6 would reveal to him the plan hatched by him and other accused to eliminate Harsha and seek his help. After coming to know the plan of accused 1 to 7, he would agree to follow Harsha and provide information to them so that they could execute their plan. Therefore appellant also became the member of conspiracy by being a facilitator to provide information. It is a settled principle that any person may become member of conspiracy at any point of time and it is also not necessary that one person of the conspiracy should be knowing the other person. If the role attributed to every member of conspiracy takes to accomplishment of ultimate goal of the
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 conspirators, every member of the conspiracy is as much liable as another. Element of intention to attract section 15 of the Act as argued by the counsel for the appellant is a matter of inference from the proved facts, hardly direct evidence is available to prove the intention as it is something concerned with state of mind. Here as the materials indicate very well that appellant agreed to provide information only after coming to know the intention of accused 1 to 7, it can be said at this stage that there are materials indicating that the appellant also shared the intention of accused 1 to 7. The call records collected by the investigating officer, the CCTV footages and the statements of the witnesses do point to the appellant's active involvement in the commission of crime. Therefore the prosecution has been able to show that its case is prima facie true.
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11. The judgment of the Supreme Court in the case of Thwaha Fasal (supra) is not helpful to the appellant for the reason that the accused therein were prosecuted for the offences punishable under Sections 38 and 39 of the Act and 120(B) of IPC. The offence under Section 13 of the Act was also leveled against accused No.2. The Hon'ble Supreme Court based on the facts and circumstances of the case before it came to conclusion that the charge sheet did not indicate active participation of accused No.1 and 2 in the activities of CPI (Maoist) and therefore Section 43D (5) was not applicable. The same is not the case here. The role attributed to the appellant is very much forthcoming from the charge sheet materials.
12. One line of argument put forward by Sri P.Prasanna Kumar is worth acceptance. The argument is that once the prosecution is able to
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 establish that the accusations found in the charge sheet against the accused are prima-facie true, bail cannot be granted at all and the other factors like the young age of the accused, absence of antecedents etc., should not influence the court to grant bail.
13. The language of Section 43D is not in favour of granting bail once accusations appear to be prima-facie true. This view is fortified by sub- Section (6) of Section 43D which says that the restriction on granting of bail specified in sub- Section (5) is in addition to the restrictions under the Code (Cr.P.C) or any other law for the time being in force on granting bail. That means restrictions cannot be ignored lightly having regard to other factors as urged by the learned counsel for the appellant.
14. The offences under the Act are undoubtedly offences against the nation
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NC: 2023:KHC:21983-DB CRL.A No. 90 of 2023 threatening its unity, integrity, security and sovereignity. It is also an offence against the society. As the facts of this case disclose, all the accused who appear to be communal fanatics and had no personal enmity against the deceased chose him for assassination with a view to striking terror among Hindus. Therefore young age of the appellant or his having no criminal antecedents is not a ground to be considered for granting bail to him.
In our opinion, the Special Court has rightly dismissed the application for bail. Appeal is therefore dismissed.
Sd/-
JUDGE Sd/-
JUDGE CKL/KMV List No.: 1 Sl No.: 4